Leiden Law Blog

Children under the age of twelve in closed institutions: is that really necessary?

Children under the age of twelve in closed institutions: is that really necessary?

We are quite familiar with the fact that, under the age of twelve, children cannot be criminally prosecuted (article 486 CCP) and, consequently, cannot be locked up in Youth Institutions. But there is no minimum age limit when it comes to the placement of young children in Closed Institutions for Youth Care. This form of youth care is one of the most invasive measures in the Dutch child protection system. This blog aims to pay attention to the – relatively unknown – phenomenon of locking up very young children in closed institutions.

Prevalence

41 children aged between six and eleven years old were place in Closed Institutions for Youth Care in the Netherlands in 2012. 35 of them were boys (Children’s Rights Monitor 2013). On 22 May 2013 the Court of Appeal in The Hague decided to place a five-year-old girl in a Closed Institution for Youth Care (ECLI:NL:GHDHA:2013:CA2758). But is it really necessary to place these very young children in closed institutions?

Minimum legal standards

Depriving very young children of their liberty is a very serious measure and it needs to be clear under which conditions this is allowed. Placement in a Closed Institution for Youth Care is considered to be a form of deprivation of liberty. This means that the minimum standards of article 37 of the UN Convention on the Rights of the Child and article 5 of the European Convention on Human Rights must be met. Children under the age of twelve may only be deprived of their liberty as a measure of last resort and for the shortest appropriate period of time and their closed placement should be neither unlawful nor arbitrary.

The Guidelines for the Alternative Care of Children suggest that alternative care for young children, especially those under the age of three years, should be provided in a family-based setting (rule 22). It is added that placement in an institutional setting (not even a closed setting!) might be justified in exceptional cases: such placements are allowed in case of emergency or for a predetermined and very limited duration. In these cases planned family reintegration or other appropriate long-term care solutions are necessary as an outcome. In the context of this issue, the Advisory Division of the Council of State stated that, against the background of the phrase ‘if necessary, placement in suitable institutions for the care of children’ in article 20(3) CRC, the placement of children under the age of twelve in institutions instead of placement in a family-based setting should be well motivated. Thus there is a strong preference for family-based care and placement in institutional care is bound to (more) strict conditions like a very limited duration and extra motivation of its necessity.

Extra strict judicial review

With regard to this age group extra strict judicial review is applied. The Court of Assen (ECLI:NL:RBASS:2010:BO4642), for instance, decided in 2010 that a decision regarding the closed placement of a very young child requires more than the usual care and consideration. Moreover, the requirements of proportionality and subsidiarity should be met.

In the case of the five-year-old girl I mentioned earlier, placement in a closed setting was seen as ‘inevitable’. In the year preceding the closed placement, her place of residence had been changed seven times within one year. Reading this judgment, it came to mind that a closed placement for this girl was really used as a measure of ‘last resort’. Nevertheless, I want to reflect critically on this practice in the Netherlands.

Critical reflections

  1. The placement of these young children in Institutions for Closed Youth Care is based on the same legal grounds for the placement of older children: Article 29(b)(3) of the Youth Care Act provides that the placement must be necessary for the care and upbringing of the child or for the examination of the child’s physical or mental state and can only be ordered if the child has serious developmental or educational problems which hamper his development towards adulthood. In addition, closed placement must, given these serious problems, be necessary to prevent the child from evading or rejecting the care he needs or to prevent him being withdrawn from this care by others. There are indications that in the event of the placement of very young children these requirements should be applied more stringently. If that is the case, this should be reflected in the law.
  2. These young children may be subjected to the same set of measures of force and restraint, e.g. solitary confinement (articles 29o-29u Youth Care Act). This could possibly lead to adverse effects in the case of very young children. Or could we even say that this is a breach of human rights standards?
  3. It is worrying that these children are not always placed in a group with peers. A nine-year-old girl was placed in a group of children up to the age of fourteen years (see ECLI:NL:GHSHE:2012:BX8451). One Institution for Closed Youth Care in Rotterdam is specialised in the treatment of under twelves but they can house no more than 29 young children.
  4. Depriving young children of their liberty seems to be a ‘stopgap’ in situations where there is simply no (good) alternative. But is closed placement in the best interests of these young children?

When I think of these 41 under twelves who were placed in closed institutions in 2012, and bear in mind that this was apparently considered the last resort for all these children, I cannot help but wonder whether creating the possibility in the law to lock up these young children introduces a law  of supply and demand. Does that mean that (some) young children are locked up just because they can be?

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